Wilcox v. Central National Bank

[66] OPINION By PHILLIPS, J. George H. Olmsted, "a ■ resident of Cuyahoga County, Ohio, ' died testate there on April 8, 1925. The Central National Savings Bank and Trust Company was named by the testator in his will and subsequently appointed executor and trustee thereof by the probate court of Cuyahoga County, Ohio. At this time that institution is known as The Central National Bank of Cleveland, Ohio. Testator’s will provided inter alia-as follows:— “FIFTH: I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, of whatsoever nature and wheresoever situated, at my decease (except my life and fire insurance business, which I have otherwise disposed of) unto The Central Nationl Bank Savings & Trust Company, its successors and assigns, in trust for the use and benefit of my wife, Ella L. Olmsted, during the remainder of her life, the income therefrom to be paid to, her monthly or quarterly, as she may need or request it. This is to- be in lieu of her first years support and dower in my estate. It is my wish that, except for some strong and impelling reason, said trustee shall retain my stocks and securities intact and shall not sell the same (particularly the Four Hundred (400) shares of the capital stock of The Union Trust Company, hereinafter bequeathed in kind to my son, ^Howard Olmsted) during the life of my said wife, Ella L. Olmsted, unless, in the judgment of the trustee, it be necessary to do so to pay debts, taxes or obligations properly chargeable to my estate or may be required for the safety or enhancement of my estate. Subject to the foregoing limitations, said trustee is hereby empowefed and authorized to bargain, sell, convey, lease, mortgage, collect, invest, reinvest, manage, control and deal with any of my said property during the continuance of said trusteeship. My homestead property, located at 1469 East Boulevard, Cleveland, Ohio, where my wife and I now reside, extending through to East 105th Street, is owned by my wife and by me with the right of entire ownership in the survivor. If she survives me, my wife will be the sole owner of said homestead property at my death, and it is my. wish that the contents of said house and garage be left in her pos [67] session and to her full use and control during the remainder of her life.” “Any income from my estate received by said trustee during the life of my wife, which is not used by her hereunder, shall be added to the corpus of my estate, and as soon after the decease of my wife as practicable, said trustee shall, except as herein limited, sell and convert into money enough of the stock and other securities belonging to my estate, which are not bequeathed herein in kind, to enable it to pay the legacies herein mentioned and transfer or distribute to the following named devisees and legatees the property or money herein specified. If my wife survives me, none of the following described legacies is to tie paid until after her death.” “TWENTY-FIRST. I give and bequeath to Mrs. Lynn Brakeman, if she has not remarried at the time my trustee or executor is ready to pay this legacy, the sum of One Thousand Dollars ($1,000.00).” ' ' “TWENTY-THREE: I give and bequeath to Mrs. Mabel Holdridge, of Brooklyn, New York, if she is living and unmarried at the time my trustee or executor is ready to pay this legacy, the. sum of One Thousand Dollars ($1,000.00) .” “TWENTY-FOURTH: I give and bequeath to Miss Fannie J. Olmsted, of Los Angeles, California', if living at the time my executor or trustee is ready to pay this legacy, the- sum of One Thousand Dollars ($1,000.00).” “THIRTIETH: I give, devise and bequeath to my son, Howard Olmsted, all the rest,- residue and remainder of my estate, both real and personal, of whatsoever nature and wheresoever situated, that may be undisposed of after the payment of the foregoing legacies and the distribution of my proper- - ties as hereinbefore provided; the -unsold securities to be given him in kind.” Mrs. Lynn 'Brakeman, also known as Eva Lynn Brakeman, testator’s niece by marriage, a resident of Ashtabula County, died intestate in Cleveland, Ohio, on September 5, 1926, without remarrying and leaving surviving her as her only heir, her daughter, Margaret Brakeman, who married defendant Robert Cox on August 17, 1940. Howard Olmsted, testator’s son, died testate in and a resident of Cuyahoga County, Ohio, on March 21, 1930, leaving defendant Zella G. Olmsted, his widow, the sole beneficiary Under his will. [68] Ella L. Olmsted, testator’s widow, died in and a resident of Cuyahoga County, Ohio, on November 18, 1932. Margaret Brakeman Cox, a resident of Ashtabula County, died intestate therein on September 13, 1941, leaving defendant Robert Cox, her widower, her only heir at law. N. A. Wilcox was appointed administrator de bonis non of the estate of Eva Lynn Brakeman by the probate court of Ashtabula County, Ohio, on June 8, 1943. Shortly after his appointment The Central National Bank of Cleveland, Ohio, “turned over to” N. A. Wilcox, as such administrator de bonis non $1085.26, which was the amount of the legacy to which reference is made in Item 21 of testator’s will plus accrued Interest. On March 24, 1944, counsel wrote a letter to N. A. Wilcox on behalf of testator’s estate requesting “that the check formerly sent to” him “be not cashed” until it was determined whether or not the legacy was properly paid over by them,” and on March 30, 1944, The Central National Bank of Cleveland made demand upon him as such administrator de bonis non “for the return of $1085.26.” On July 19, 1944, N. A. Wilcox, administrator de bonis non of the estate of Eva Lynn Brakeman, deceased, filed a petition for a declaratory judgment in the Probate Court of Ashtabula County, Ohio. The case was submitted to that court on an agreed statement of facts in which it was stipulated that testator died “leaving a last will and testament, a correct copy of which has been offered and admitted in this case.” Defendant Zella G. Olmsted appealed tó this court on questions of law and fact from the finding and judgment of that court without objection and the case was submitted upon brief. In the absence of objection and without determining whether it was properly appealed as one on questions of law and fact it was retained and will be determined as such. The case was submitted to us upon the agreed statement of facts upon which it was submitted to the probate court. Substantially that evidence is set forth in the factual statement of this opinion. The principal question presented for our consideration and determination is whether the legacy of $1,000.00 given and bequeathed to Eva Lynn Brakeman by Item 21 of testator's will vested in her at his death, a present fixed right of future enjoyment. Defendant Zella G. Olmsted contends that such legacy [69] never vested in Eva Lynn Brakeman; that such legacy lapsed for the reason that “Eva Lynn Brakeman was not a child or other relative” of testator, but “merely a relative” of testator’s wife; that defendant Robert Cox, husband of Margaret Brakeman Cox (daughter of Eva Lynn Brakeman) never acquired any interest therein, and that her contention “involves” the Construction of §10504-73 GC. Defendant Robert Cox claims that under authority of Larwill v Ewing, 73 Oh St, 177, §10504-73, GC “does not apply in this case and can be entirely disregarded,” and the fact that Eva Lynn Brakeman was not a blood relative of testator is immaterial, and arguesJthat the legacy given and bequeathed by Item 21 of testator’s will was a vested legacy, and cites authorities to support his contention. ‘“When a devise of real or personal estate is made to a child or other relative of the testator, if such child or other relative was dead at the time the will was made, or dies thereafter, leaving issue surviving the testator, in either case such issue shall take the estate devised as the devisee would have done, if he had survived the testator.” §10504-73 GC. “* * * The effect of the statute is to prevent the lapsing of devises and bequests clearly made to a child or other relative of a testator when such primary devisee dies before the testator, but leaving issue which survives him, unless to give it that effect would be subversive of a dispositive, intention clearly expressed in the will.” 41 O. Jur., §815, 936. “The effect of section 5971, Revised Statutes, (this was the predecessor of the present section 10504-73) is to prevent the lapsing of devises and bequests clearly made to a child or other relative of a testator when such primary devisee dies before the testator, but leaving issue which survives him, unless to give it that effect would be subversive of a dispositive intention clearly expressed in the will.” Larwell v Ewing, supra. The court concludes that §10504-73 GC, does not apply in this case. Eva Lynn Brakeman, eoncededly a non-blood relative of testator, survived him, and a majority of the court believes that upon his death the legacy given and bequeathed to her by Item 21 of his will vested in her subject only to being divested if she remarried. [69] “After a gift has once vested there can be no lapse by the subsequent death of the beneficiary, even though his death [70] occurs before the legacy becomes payable. If the gift vests on the death of the testator, it will not lapse because of the death of the beneficiary before the time arrives for his enjoyment in possession.” Thompson on Wills, Chapter 28, Section 491. “Whether a legacy or devise is vested or contingent depends upon the testator’s intention expressed in the will.” 41 O. Jur. §741, P 861. The certainty of testator’s intention as construed herein is fortified by a perusal o'f other items in his will, which will we have a right to consider in its entirety, in determining the question presented and disposing of the claims and contentions of the respective parties. The testator must be presumed to have intended that the death of Eva Lynn' Brakeman would not effect the vesting of the legacy in her at his death 'but that her future enjoyment thereof would b© divested only if she remarried before distribution. Item 21 does not make vesting of the legacy to Eva Lynn Brakeman contingent upon her being alive at the time the executors were ready to make distribution. In this respect it differs from the legacies made in items 23 and 24 and legacies made in other items of testator’s will. Tested by the foregoing quotation from the quoted, authorities and others, the majority of the court reaches the conclusion that the legacy which testator gave and bequeathed to Eva Lynn Brakeman by Item 21 of his will be retained by plaintiff as administrator d© "bonis non of the estate of Eva Lynn Brákeman and administered by him as other assets of her estate. An entry drawn in conformity to the finding of the majority of the court may be presented. NICHOLS, P. J., concurs in judgment. CARTER, J., dissents.